BACKGROUND: The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with Tab 19, Article 2, Section 6(g) of the State Bar Board Book the Committee shall publish proposed formal opinions for a public comment period of no less than 60 days.

DISCUSSION/PROPOSAL: Proposed Formal Opinion Interim No. 08-0003 considers: 1. When at the outset of representation it appears an attorney would need to serve a discovery subpoena for production of documents on another current client of the attorney or the attorney’s law firm, may the attorney accept the representation of the new client and serve the discovery subpoena on the current client? 2. If doing so raises a conflict of interest, may the attorney seek informed written consent in order to accept the representation including possible service of the subpoena? 3. What obligations arise if an attorney seeks informed written consent?

The opinion interprets rules 3-100 and 3-310 of the Rules of Professional Conduct of the State Bar of California and Business and Professions Code section 6068, subdivision (e).

The opinion digest states: When an attorney discovers at the outset of representation that the attorney must serve a discovery subpoena for production of documents on another current client of the attorney or the attorney's law firm, serving the discovery subpoena is an adverse action such that a concurrent client conflict of interest arises. To represent a client who seeks to serve such a subpoena, the attorney must seek informed written consent from each client, disclosing the relevant circumstances and the actual and reasonably foreseeable adverse consequences to the client providing consent.

At its April 8, 2011 meeting and in accordance with its Rules of Procedure (State Bar Board Book Tab 19, Art. 2, Sec. 6(g)), the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 08-0003 for a 90 day public comment distribution.